In September and October 2020, the American Bar Association (ABA) Center for Human Rights and Human Rights Embassy monitored the trials of 15 Belarusian citizens as part of the Clooney Foundation for Justice’s TrialWatch initiative. The accused – Pavel Zhuk, Siarhei Babrou, Aleh Sakovich, Iryna Kuzina, Alina Ulyashyna, Dmitry Petrov, Yuliya Novik, Renata Lyskovich, Maria Banderenka, Anna Korshun, Maksim Bazuk, Lyudmila Kazak, Ivan Yakhin, Raman Pazniak, and Andrei Sychyk – included activists, students, and a human rights lawyer. They were arrested in connection with the demonstrations that spread across Belarus following President Aleksandr Lukashenko’s reelection on August 9, 2020 in a vote widely condemned as fraudulent. The accused were charged with violating Belarus’s Code of Administrative Offenses, which – while described as “administrative” – provides for penalties of imprisonment and has become a frequent tool of the authorities in their crackdown on political opposition.
The proceedings against the defendants, from arrest to conviction, entailed severe violations of their rights under international law, including the right to be free from arbitrary detention, the right to be presumed innocent, and the right to an impartial tribunal. With trials in Belarus increasingly closed to the public, the monitored proceedings provide a window into how the authorities have systematically flouted international due process and fair trial guarantees, as well as guarantees related to humane detention conditions. The following analysis is based on the observation of trials that were open to the public.
All of the defendants were detained by riot officers or other police – some in uniform and others in civilian clothing but typically wearing balaclavas over their faces – who failed to identify themselves or give any explanations before the arrests, causing many of the accused to believe they were being abducted. Out of the 15 defendants, 13 were arrested during or soon after demonstrations and accused of participating in an unauthorized mass event in violation of Article 23.34 of the Code of Administrative Offenses (two of these 13 defendants, Ms. Ulyashyna and Mr. Petrov, were additionally charged with disobeying lawful police orders in violation of Article 23.4 of the Code). Of the remaining two defendants, one accused, Ms. Lyskovich, was arrested for sharing information online about an allegedly unauthorized mass event and charged under Article 23.34. The other accused, Ms. Kazak – a human rights lawyer – was grabbed by police on her way to a hearing – supposedly in relation to her alleged participation in a protest almost a month earlier, although she was later prosecuted for allegedly disobeying police orders under Article 23.4.
Upon arrest, all of the accused were brought to the Internal Affairs Departments of various districts of Minsk, where Offense Protocols (i.e., charge sheets) and other case materials were prepared. Out of the 15 defendants, 13 were then transferred to the temporary detention center on Okrestina Street to await trial. They were detained for between 21 and 77 hours before their hearings started. The other two defendants were released pending trial. No justification for detention was given in any of the cases.
The defendants’ unjustified and unnecessary detention was especially egregious in light of the COVID-19 pandemic. Further, the detention conditions at Okrestina Street were described by several accused as inhumane. One defendant testifying at trial recounted, among other things, that detainees were sleeping on the concrete without mattresses, that there was no drinking water available in the cells, and that detainees were forced to defecate in the cells without cleaning materials: as such, detention pretrial was a punishment in itself.
The defendants’ trials were marred by absurdities. The police evidence against the defendants was so implausible, the judges’ bias against the defendants so evident, and the verdicts so illogical that no reasonable observer could have deemed the proceedings and resulting convictions fair. In one flagrant example, Mr. Bazuk was convicted on the basis of police testimony despite the officer’s admission that he could have confused Mr. Bazuk with someone else at the protest. In other cases, the judges returned the case files to the police to “eliminate deficiencies” rather than acquitting the defendants when it became clear the allegations could not be proven, subsequently allowing the police to revise the Offense Protocols and give new testimony that radically changed basic details of the allegations.
Out of the 15 defendants, 14 were convicted: 12 were sentenced to between five and 14 days imprisonment and two were fined. Although the underlying circumstances differed across the cases, the guilty verdicts appeared to be variations of a template (at times even using the wrong name for the defendant) and employed language that was similar or identical to the Offense Protocols. The remaining defendant, Ms. Kuzina, was not acquitted but released pending the return of her case file to the police for further investigation. Her case had not been reopened at the time of publication. While the majority of the defendants appealed their convictions, these appeals were all dismissed by higher courts.
In addition to grossly violating the defendants’ fair trial rights, the proceedings against the accused contravened their rights to freedom of expression and peaceful assembly. In accordance with the International Covenant on Civil and Political Rights (ICCPR), restrictions on the rights to freedom of expression and peaceful assembly must (i) be prescribed by law, (ii) serve a legitimate objective, and (iii) be necessary to achieve and proportionate to that objective. Expressive assemblies concerning issues of public interest – such as the election protests in which the defendants were alleged to have participated – warrant heightened protection.
Nevertheless, the defendants in these cases were expressly charged and convicted for participation in mass protests. The alleged acts at issue, as stated in the Offense Protocols and judgments, included demonstrating “against the fact of holding fair elections” and shouting slogans such as “Long live Belarus” and “Shame” for the purpose of “expressing their socio-political views.” Peacefully challenging the government is not a legitimate reason to restrict free speech or assembly. Furthermore, the imposition of imprisonment and punitive fines for participation in peaceful protests is wholly unnecessary and disproportionate to any legitimate aim that might exist for restricting the right to freedom of expression or freedom of peaceful assembly.
Finally, it appears that Ms. Kazak was arrested and prosecuted to punish her for and/or preclude her legal representation of an opposition leader. The ICCPR protects against the use of criminal proceedings for an ulterior or improper motive. The European Court of Human Rights has set forth various indicia of improper motive, including the overarching political context and timing; lack of reasonable suspicion to bring the charges; the selective targeting of a specific individual; the conduct of the proceedings; and an improperly reasoned judgment. Ms. Kazak’s case meets all of these criteria.
In sum, the proceedings against the 15 accused reveal severe, systemic violations of the defendants’ right to a fair trial and right to freedom of expression and peaceful assembly. Current monitoring mechanisms, such as the ongoing Office of the High Commissioner for Human Rights investigation and the International Accountability Platform, should highlight such violations as part of their documentation efforts. Moreover, the United States and other countries should impose sanctions on repeat bad actors in the judicial system, such as the judges who presided over multiple unfair trials and wrongful convictions in the cases monitored for this report. Lastly, international actors should push for trials to be open and transparent, permitting assessment of their compliance with human rights standards.